HOA Legi-Slate

Beginning with taxes for 2009, Colorado landowners are entitled to subtract 50% of the costs of wildfire mitigation measures, up to $2500, from federal taxable income. This new law requires that the wildfire mitigation measures be performed in a “wildland-urban interface area” and the plan must be authorized by local government within the interface area.  This is just one more step towards the supporting of fire mitigation efforts as set forth in C.R.S. 38-33.3-106.5 (1)(e).

Posted By Loura K. Sanchez In Legislative Miscellaneous 0 Comments Permalink

The approval of HB 08-1270 has caused us all to be more aware of energy efficiency issues. Is your association doing what it can to reduce energy consumption? Did you know that associations may be available for tax credits of 30% for installing solar devices?  The average time to recoup the cost of a solar system to heat your community pool maybe as little of 5 years and loans may be available to make such purchases through banks like Community Association Banc. 

In addition, the Denver Water Board offers rebates for the installation of rain sensors or sub-meters and Excel Energy also has various energy efficiency programs with financial incentives available. 

Posted By Loura K. Sanchez In Legislative Miscellaneous 0 Comments Permalink

Yesterday Governor Ritter signed HB 1270 into law.  As you know, this new law governs the installation of renewable energy generation devices and energy efficiency measures in homeowners associations.  The effective date of the new law is contingent upon when the Colorado General Assembly adjourns - but is expected for sometime in early August.  We will inform you when the exact effective date is know.  To learn more about steps associations should take to begin preparing to comply with the new law, we invite you to visit our homepage at www.hindmansanchez.com.

Posted By Molly Foley-Healy In Legislative Miscellaneous 0 Comments Permalink

The Federal Virginia Graeme Baker Pool and Spa Safety Act was effective on December 20, 2007.  The Act, which applies to all public pools and spas requires certain types of safety drain covers and suction entrapment prevention devices. The definition of public pool includes any pool open to the public, whether for a fee or not and pools in multiple family residential facilities.  So, certainly, pools in townhome and condominium communities are clearly covered. Pools in single family communities may be exempt unless open to the public.  All pools must be compliant by December 20, 2008 or they can't be open!  For more information click here.

Posted By Loura K. Sanchez In Legislative Miscellaneous 0 Comments Permalink

HB08-1135, which passed the House by a 61-1 vote on January 25, 2008 is currently awaiting action in the Senate.  If passed by the Senate, the bill will add a provision to CCIOA in Section 106.5 that provides that no provision in a community’s governing documents may prohibit:

(g) REASONABLE MODIFICATIONS TO A UNIT AS NECESSARY TO
AFFORD A PERSON WITH DISABILITIES FULL USE AND ENJOYMENT OF THE
UNIT IN ACCORDANCE WITH THE FEDERAL "FAIR HOUSING ACT OF 1968",
42 U.S.C. SEC. 3604 (f) (3) (A).

We all know that this is the federal law, but I wonder what the implications are for including this provision in CCIOA. First, does this now give an owner an additional claim against associations for violation of CCIOA in addition to a violation of the FHAA? Presumably, yes. Again, we may say “so what”; but one reason to be concerned is attorney fees are awarded to the prevailing party if a claim is brought for failure to comply with CCIOA. This is significant because the FHAA doesn’t contain specific provisions allowing for the award of attorney fees. However, it is possible for the commission hearing a FHAA claim to award actual damages to a complaining party, which could, arguably include attorney fees. Only time, creative litigants and court decisions will tell us the long-term implications of this amendment.

Posted By Loura K. Sanchez In Legislative Miscellaneous 4 Comments Permalink

On January 24, 2008, the Colorado Court of Appeals affirmed an EL Paso County District Court ruling awarding an association all assessments that were unpaid by the lender who became the owner of a unit after a foreclosure. The Court of Appeals also confirmed that the association was entitled to its costs and reasonable attorney fees associated with the unpaid assessments. 

Good case law protecting associations in Colorado is limited, so this case is helpful in:

• Affirming that associations have no obligation to file a notice of lien - lien is perfected by the recording of the declaration pursuant to C.R.S 38-333.3-316.
• Lien priorities are determined by C.R.S. 38-333.3-316, not a declaration.
• A security interest on a unit which has priority over all other security interests in the unit (e.g. a first deed of trust) must be consensual.
• Attorney fees awards aren’t discretionary if allowed by statute or under non-discretionary language in a declaration.
• The super lien can never exceed an amount equal to 6 months of assessments, but can be comprised of any “charges” against a unit.
• Be clear when making demands to an owner as to whether you are seeking payment of the super lien or unpaid assessments. 
• Lenders are treated like any other owners in associations.

Click here for a complete copy of the BA Mortgage, LLC v. Quail Creek Condominium Association decision.

Posted By Loura K. Sanchez In Legislative Miscellaneous 2 Comments Permalink

On Friday, January 25, 2008, House Bill 08-1135, sponsored by Representative Morgan Carroll, passed the Colorado House of Representative by a vote of 61-1.  As we outlined in a January 16th posting on HOA Legi-Slate, the legislation: (1) references the Federal Fair Housing Act in the Colorado Common Interest Ownership Act; (2) Prevents homeowners associations from levying fines for a covenant or rule violation unless an association has adopted a policy governing the imposition of fines and a right to a hearing before an "impartial decision maker" is afforded before a fine is levied; and (3) Endorses and encourages the use of alternative dispute resolution to resolve association disputes.  The bill has been sent to the Senate where it is expected to be passed.  In the event HB 08-1135 is passed by the Senate and signed into law by Governor Ritter, the bill will go into effect on July 1, 2008.

Posted By Molly Foley-Healy In Legislative Miscellaneous 14 Comments Permalink

The California Legislature appears to be continuing down the same road as other legislatures in addressing community association issues -- by putting more and more specific details and requirements into the statutes.  A new law recently signed by the California Governor requires associations to distribute an agenda with meeting notices and prohibits boards from discussing anything not on the agenda, with a few exceptions.  For a complete copy of the bill click here.
 
The California legislature is also considering a bill that will mandate board member education (this is a carry-over bill from 2007) and will likely restate the Davis Sterling Act (which is California's version of the Colorado Common Interest Ownership Act.)  Part of the restatement is expected to include sections of other codes being placed in the Davis Sterling Act. This seems to be in line with Representative Carroll's inclusion of a reference to the Fair Housing Amendments Act in bill 08-1135 introduced last week in Colorado.

Posted By Loura K. Sanchez In Legislative Miscellaneous 4 Comments Permalink

On January 15, 2008, Representative Morgan Carroll introduced House Bill 08-1135 aimed at addressing issues relating to common interest communities in Colorado. In particular, Representative Carroll's bill provides the following:

1. It references in the Colorado Common Interest Ownership Act ("CCIOA") the provision of the Federal Fair Housing Act which provides that homeowners associations shall not prohibit "reasonable modifications to a unit as necessary to afford a person with disabilities full use and enjoyment of the unit."
While including a reference to the Federal Fair Housing Act in CCIOA is not necessary from a legal perspective, we don't have any problem with it being referenced in CCIOA for informational and educational purposes. 

2. Homeowners associations are prohibited from levying a fine against a unit owner for a violation of a covenant or rule unless:

    A. The association has adopted a written policy governing the imposition of fines. (This is currently a required policy under Colorado law.)

    B. The policy includes notice and the right to a hearing before an "Impartial Decision Maker" prior to a fine being levied. An "Impartial Decision Maker" is defined as "a person or group of persons who have the authority to make a decision and do not have any direct personal or financial interest in the outcome."

    C. If the Impartial Decision Maker determines the unit owner did not violate the covenant or rule, the Association may not assess against the unit owner's account any of the costs or attorneys fees incurred in asserting or hearing the claim.
These provisions seem consistent with the requirement currently in Colorado law that homeowners associations must have a responsible governance policy that addresses enforcement of covenants and rules, including notice and hearing procedures and the schedule of fines. While we have some concern that homeowners may misinterpret the definition of "Impartial Decision Maker" - if this bill is passed, we will continue to advise our clients to comply with the policy of their associations governing enforcement of covenants and rules.   

3. Endorses and encourages associations, unit owners, managers, declarants and all potential parties to disputes relating to common interest communities to utilize public and private resources for alternative dispute resolution to resolve disputes.

    A. Any controversy between an association and a unit owner may be submitted to mediation upon agreement of the parties prior to taking legal action.

    B. Either party to a mediation may terminate the mediation process without prejudice.

    C. If a mediation agreement is reached, it may be presented in court as a stipulation. If either party violates the stipulation, the other party may seek relief in court.

    D. The governing documents of an association may specify situations in which disputes must be resolved by binding arbitration or another means of alternative dispute resolution.
We continue to support the concept of alternative dispute resolution as a method to resolve conflicts before they become full blown disputes and will advise our clients to follow the requirement currently in Colorado law that associations have in place procedures addressing disputes arising between the association and unit owners. 

 We will keep you posted on action relating to this bill during the legislative session. We also look forward to hearing what you think of HB 08-1135 and encourage you to Post a Comment to this post by clicking on Comments.

Posted By Loura K. Sanchez In Legislative Miscellaneous 14 Comments Permalink

1. Every member of the board must receive a notice in writing stating the action to be taken and the time by which each member of the board must respond.
2. Every member of the board, by the time stated in the notice, must:
   Vote In Writing for such action, or 
   Vote in Writing against such action, or
   Abstain in Writing from voting, or
   Fail to respond or vote, AND
   Fail to demand that action not be taken without a meeting.

Posted By Molly Foley-Healy In Legislative Miscellaneous 4 Comments Permalink

If you have ever lived in or served on the board of a homeowners association, you know that from time-to-time homeowners will disagree with provisions of the governing documents of the association or how the association is being governed.  Appropriately, in 99.9% of cases, these situations are resolved quickly and amicably before the homeowners or boards even consider the possibility of litigation.  Here are the key steps that homeowners and board members should take to resolve issues before they become disputes:

1.   Every homeowners association should adopt a policy, as required by Colorado law, that outlines the procedures to be followed when disputes arise between homeowners and the association.  

2.   All parties should be careful not to react on an emotional level to a situation before they have all of the information needed to fully assess the matter.  This includes learning the facts associated with the situation and whether the governing documents or Colorado law control any aspect of the matter.

3 .  Once the parties are fully informed, they should communicate with each other in an appropriate and amicable manner.  When parties become emotional and egos enter the picture, issues can quickly evolve into disputes that are difficult to resolve.

 4 .  If parties are unable to reach an amicable resolution through negotiations, they should seek assistance from an independent mediator to help them navigate the path to resolution of the matter. 

Contentious disputes never serve the best interests of homeowners or associations.  By nipping conflicts in the bud before they flower into full scale disputes, all parties will do their part in creating livable communities.

Posted By Molly Foley-Healy In Legislative Miscellaneous 2 Comments Permalink

As a reminder, the new laws affecting public trustee and judicial foreclosures are now in effect.  We have updated our website articles to make it clear how these laws will affect associations.  If you are interested, you may want to check out the following articles: The Effect of Public Trustee Foreclosures on Association Liens, Foreclosure As A Collection Tool, Foreclosure of Assessment Liens and Receivers: An Alternative Method to Collecting Delinquent Assessments.

Posted By Loura K. Sanchez In Legislative Miscellaneous 2 Comments Permalink

As you know, Colorado's new foreclosure law becomes fully effective as of January 1, 2008.  However, in anticipation of the effective date, each of Colorado's public trustees has set a cut-off date in December by which any new foreclosure must be filed in order to be processed under current law.  The cut-off dates range from December 13 to December 31.  Any new foreclosure filed after a public trustee's cut-off date must be filed using new forms and will be processed under the new law.  Associations will want to review notices of foreclosure received between now and the end of the year VERY carefully to make sure what law is being applied.  For more information on the new law click here.

Posted By Loura K. Sanchez In Legislative Miscellaneous 1 Comments Permalink

You only need to turn on the television, open a newspaper, or go online to know the foreclosure crisis is continuing to make headlines across the nation.  In fact, just today, President Bush unveiled a foreclosure relief plan aimed at stemming the tide of foreclosures resulting from adjustable rate mortgages.  The impact of the rising numbers of foreclosures on assessments in homeowners associations is also making news.  9NEWS posted a story that cites the foreclosure crisis as one of the triggers for assessment increases in Colorado.  Only time will tell the extent to which foreclosures will affect assessment hikes in associations.  

Also, as a reminder, the revisions to Colorado's foreclosure law will go into effect on January 1, 2008.  To learn more about how the changes will affect community associations, check out our December 2007 edition of Community Essentials.

Posted By Molly Foley-Healy In Legislative Miscellaneous 1 Comments Permalink

9NEWS.com recently posted a story entitled HOA says mother of fallen soldier has to take down flag.  Thanh Truong, a reporter for 9NEWS, reported that Mary Sims - who lives in a community association in Aurora - has been asked by her association to remove the American flag that she has been flying on her front porch.  It was reported that the front porch is part of the common elements and the association has asked Ms. Sims to relocate the flag to a window or her balcony.  Ms. Sims has been flying the American flag to honor her deceased son who was a recruiter for the National Guard and her husband who is currently a civilian worker for the Department of Defense in Iraq. 

As we have noted in previous postings on HOA Legi-Slate, Colorado and federal law specifically address the rights of individuals living in community associations to fly the American flag.  The Colorado Common Interest Ownership Act ("CCIOA") at section 38-33.3-106.5(1)(a), provides that associations may not prohibit "The display of the American flag on a unit owner's property, in a window of the unit, or on a balcony adjoining the unit if the American flag is displayed in a manner consistent with the federal flag code.  The association may adopt reasonable rules regarding the placement and manner of display of the American flag.  The association rules may regulate the location and size of flags and flagpoles, but shall not prohibit the installation of a flag or flagpole."  Consistently, the federal Freedom to Display the American Flag Act of 2005 ("Act") prohibits associations from preventing residents from flying the American flag on their own or exclusive use property.   However, the Act does permit associations to place reasonable restrictions on the time, place and manner in which the American flag is displayed.

Ms. Sims was quoted by 9NEWS as saying "I don't think they have the right to tell me where to hang my American flag."   Whether the association will pursue enforcement in this matter remains to be seen.

Posted By Molly Foley-Healy In Legislative Miscellaneous 9 Comments Permalink

During the past year, we have been keeping you in the loop on passage of House Bill 1157 which cleaned-up the comprehensive foreclosure reform legislation that was signed into law in 2006.  On January 1, 2008, the provisions of HB 1157 that apply to foreclosures in community associations will go into effect.  Based upon these provisions, associations should be aware of the following:

• There is an increased timeframe in which a homeowner may "cure" assessment delinquencies.  The "cure period" - the time between the commencement of the foreclosure action and the initial sale date - was increased from 45-60 days to 110-125 days.
• The right to redeem by homeowners after the sale of the property is eliminated.
• Associations should make sure that all recorded liens reflect an address to receive notice of a foreclosure and if relying on a statutory lien - that the current address for notice be reflected in a recorded document.  Otherwise, associations may not receive notice of foreclosures. 

Posted By Molly Foley-Healy In Legislative Miscellaneous 0 Comments Permalink

• The Order will apply to existing and future exclusivity clauses in contracts that cable operators enter into with condominium associations and likely all residential community associations.  "Cable Operators" are those cable service providers that hold a franchise from a state or local government permitting them to use rights-of-way.
• The Order does not prohibit community associations from entering into exclusive marketing agreements or bulk billing arrangements with cable operators. 
• The Order does not apply at this time to "private cable operators" which are those cable service providers that do not hold a franchise from a state or local government permitting them to use rights-of-way. 
• The Order does not apply at this time to agreements community associations enter into with direct broadcast satellite providers and other multi-channel video programming distributors (MVPDs).  

1. Ban the use of exclusivity clauses by direct broadcast satellite providers, private cable operators and other MVPDs.
2. Prohibit the use of exclusive marketing agreements and bulk billing arrangements. It should be noted that FCC Commissioner Adelstein expressed concern that costs associated with bulk billing fees are being built into association assessments.

Posted By Molly Foley-Healy In Legislative Miscellaneous 1 Comments Permalink

On September 26, 2007, the Denver Board of Water Commissioners voted to increase water rates for 2008 to cover rising costs associated with maintaining, improving and expanding Denver's water system.  Denver Water is the largest supplier of water in Colorado with over 1 million customers in Denver and surrounding suburbs.  Denver Water has reported that the increased rates will vary "depending on the amount of water a customer uses and whether they are inside the city limits or served by a suburban utility with a Denver Water contract." 

A new class of customers with dedicated outdoor irrigation taps called "Other Irrigation" has been established.  This new class is reportedly made up primarily of commercial, industrial and governmental entities and "will pay seasonal rates up to 10% higher than what they are currently paying during the summer."  However, Denver Water has reported that "Some irrigation-only customers, generally homeowner associations, were put into a "Single Family Residential Common Area Irrigation" class earlier in 2007."  Presumably, this class of customers will not be impacted by the 10% increase for "Other Irrigation" customers.  We recommend that representatives of associations that are "irrigation-only" customers with Denver Water check to ensure that your associations have been classified as "Single Family Residential Common Area Irrigation." 

Posted By Molly Foley-Healy In Legislative Miscellaneous 0 Comments Permalink

On August 23, 2007, we notified you in a posting on HOA Legi-Slate that a new Department of Homeland Security (DHS) Rule, Safe Harbor Procedures for Employers Who Receive a No-Match Letter, was slated to go into effect on September 14, 2007.  The Rule addresses the implications for employers who knowingly retain the employment of unauthorized aliens and steps employers should take to avail themselves of "safe harbor" when receiving notice from the Social Security Administration (SSA) or DHS that records an employer submits relative to an employee do not match SSA or DHS records.

On August 31, 2007, United States District Court Judge Maxine M. Chesney of the Northern District of California stayed implementation of the Rule when she signed a Temporary Restraining Order and Order to Show Cause Regarding Preliminary Injunction (TRO).  In the TRO, Judge Chesney found that the Plaintiff's "raised serious questions as to whether the new Department of Homeland Security rule is inconsistent with statute and beyond the statutory authority of the Department of Homeland Security and the Social Security Administration.  The Court also finds that Plaintiffs have demonstrated that the balance of harms tips sharply in favor of a stay based on Plaintiffs' showing that they and their members would suffer irreparable harm if the rule is implemented while Defendants would suffer significantly less harm from a delay in the implementation of the rule pending consideration of Plaintiffs' claims."  The Plaintiffs and critics of the Rule contend that implementation of the Rule will have a dramatic and detrimental impact on the workforce in the United States. 

DHS has been ordered to appear on October 1st in United States District Court to show cause why the Rule should be implemented and why a preliminary injunction should not be issued further delaying implementation of the Rule.  We will provide you with updates on implementation of the Rule as they occur.  In the meantime, if you receive a letter from SSA or DHS indicating that the records you submitted on an employee do not match SSA or DHS records, we recommend that you comply with the steps outlined in our August 23rd posting. 

Posted By Molly Foley-Healy In Legislative Miscellaneous 0 Comments Permalink

Did you know that your community association, management company or business may need to take extra precautions to ensure that you do not continue to employ an unauthorized alien?  On September 14, 2007, the Department of Homeland Security's (DHS) Final Rule entitled Safe-Harbor Procedures for Employers Who Receive a No-Match Letter ("Rule") will go into effect.  Here are the basics you need to know about the Rule:

?  The Immigration and Nationality Act ("INA") provides in part that it is "unlawful for a person or other entity, after hiring an alien for employment . . . to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment." 

?  The new Rule provides guidance for employers on what will constitute knowing employment of an unauthorized alien.  Under the Rule, "knowing" includes actual knowledge that the employee is an unauthorized alien and "knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition" - also known as "constructive knowledge."  While DHS will look at the "totality of the circumstances" present in a particular case to determine whether an employer has knowledge that an employee is an unauthorized alien, here are two examples outlined in the Rule where constructive knowledge will be inferred upon the employer:

1.    Written notice to the employer from the Social Security Administration ("SSA") that the name and social security number submitted for an employee does not match SSA records.  This written notice is usually sent to an employer in the form of an "Employer Correction Request" also known under the Rule as a "No-Match Letter." 

2.  Written notice from DHS that the immigration status document, or employment authorization document, presented or referenced by the employee in completing Form I-9  (Employment Eligibility Verification Form) was assigned to another person, or there is no agency record that the document was assigned to anyone.

?  What steps should you take if you receive a No-Match Letter from SSA or written notice from DHS that the immigration status document or employment authorization document presented or referenced by the employee was assigned to another person or does not exist?  The Rule suggests that employers take the following "reasonable" steps to help ensure that the employer is not found to have constructive knowledge that an employee is an unauthorized alien. Employers, who take the steps outlined below in a timely manner, should receive "safe-harbor" from liability associated with employing an unauthorized alien in violation of the INA prohibition.

1.    Within 30 days upon receiving written notification from SSA or DHS of a no-match with government records, an employer should check the appropriate records to ensure that there was no clerical error in the documents sent to SSA or DHS.  If there was an error, the employer should send the corrected documents to SSA or DHS to ensure that there is a match with the appropriate government records.

2.    If no clerical error is found by the employer, the employer should promptly request that the employee confirm the records submitted by the employee to the employer are correct.  If the records of the employer are not correct, the employer should correct the records and send them to SSA or DHS to ensure there is a match with the appropriate government records.  If the employee contends that the records of the employer are correct, the employer should instruct the employee to personally pursue this matter with SSA or DHS to clear-up the discrepancy.

3.       If the discrepancy between the employer's records and the records of SSA or DHS is not cleared-up within 90 days of the employer initially receiving the No-Match Letter from SSA or a discrepancy letter from DHS, the employer may follow a verification procedure described in the Rule. Online verification services are available at the following Links:

Social Security Administration (SSA) Social Security Number Verification Service:  http://www.ssa.gov/employer/ssnv.htm

Department of Homeland Security (DHS) and US Citizenship and Immigration Services Bureau E-Verify: 

https://www.vis-hs.com/EmployerRegistration/StartPage.aspx?JS=YES

4.  If, after going through the verification process, an employer is unable to verify that an employee is not an unauthorized alien, the  employer must decide whether to terminate the employment of the unauthorized alien or face the risk of DHS determining that the employer had actual or constructive knowledge that the employee was an unauthorized alien.      

?  If DHS determines that an employer knowingly retains an employee who is an unauthorized alien, DHS may fine the employer from $250 to $2,000 for each unauthorized alien employee. Further, if DHS determines that an employer has engaged in a pattern or practice of knowingly retaining unauthorized aliens as employees – DHS may fine the employer up to $10,000 for each such employee. 

Finally, under the Rule, DHS encourages employers following the procedures above to retain all documentation and records from the process including notes from applicable telephone calls, records, emails and correspondence with SSA or DHS relative to the employee in question, and records or documentation of any other steps the employer has taken to verify the status of an employee. An employer is required to retain copies of all I-9 forms of an employee for at least one year after the employee has left employment with the employer.

Posted By Molly Foley-Healy In Legislative Miscellaneous 0 Comments Permalink

Have you ever heard of the Federal Communication Commission's ("FCC") Over-the-Air Reception Devices Rule ("OTARD")?  As part of the Telecommunications Act of 1996, the United States Congress directed the FCC to adopt a rule that prohibits most restrictions by community associations and other entities that impair the installation, maintenance or use of antennas used to receive video programming.  From the beginning, OTARD has applied to video antennas including satellite dishes that are one meter or less in diameter, TV antennas and wireless cable antennas.  In 2001, an FCC expansion of OTARD became effective to include customer-end antennas that receive and transmit fixed wireless signals.

OTARD is lengthy and can be complicated.  However, OTARD can essentially be boiled down to prohibiting most restrictions by community associations that (1) unreasonably delay or prevent installation, maintenance or use of antennas covered by OTARD; (2) unreasonably increase the cost of installation, maintenance or use of covered antennas; or (3) preclude reception of an acceptable quality signal.

The FCC has been vigorous in defending the rights of residents in community associations - including renters - to install satellite dishes that are less than one meter in diameter on their own or exclusive use property. Here are a few questions that commonly arise in community associations relative to covenants, rules or architectural guidelines relating to satellite dishes and antennas.

1.  Can my community association require residents to submit an application to install a satellite dish and obtain approval prior to installation?  Generally the requirement that residents must submit an application and receive prior approval to install a satellite dish, that is 1 meter or less in diameter, violates OTARD because such procedural requirements have been interpreted to unreasonably delay the installation, maintenance or use of an antenna.  Prior approval may only be permissible if it serves a legitimate safety or historic preservation concern.  The safety exception is difficult to justify under OTARD and community associations have the burden of establishing that a safety restriction is no more burdensome than necessary to accomplish the safety purpose.  The FCC has described examples of valid safety restrictions to include "fire codes preventing people from installing antennas on fire escapes; restrictions requiring that a person not place an antenna within a certain distance from a power line; and installation requirements that describe the proper method to secure an antenna."  Interestingly, with the exception of antennas that transmit and receive signals, associations are not permitted to require residents to have satellite dishes installed by professionals. 

2.  Can my community association require residents to place satellite dishes/antennas in specified locations?  Associations are permitted to create preferred placement locations for satellite dishes and other types of antennas covered by OTARD.  Residents are required to comply with the preferred placement locations so long as they do not impose unreasonable delay or expense relative to installation or prevent reception of an acceptable quality signal. 

3.  Can my community association require residents to camouflage satellite dishes or other antennas covered by OTARD?  In an effort to camouflage satellite dishes and antennas, community associations may not require residents to install a costly landscaping screen or build other types of screens.  However, the FCC has given the opinion that "requiring residents to paint an antenna so that it blends into the background against which it is mounted would likely be acceptable, provided it will not interfere with reception or impose unreasonable costs."

4.  Can my community association install a central antenna and then stop residents from installing satellite dishes and other antennas covered by OTARD?  The FCC has determined that community associations with a central antenna may restrict the installation of other antennas by residents if:  "(1) the person receives the particular video programming or fixed wireless service that the person desires and could receive with an individual antenna covered under the rule (e.g., the person would be entitled to receive service from a specific provider, not simply a provider selected by the association); (2) the signal quality of transmission to and from the person's home using the central antenna is as good as, or better than, the quality the person could receive or transmit with an individual antenna covered by the rule; (3) the costs associated with the use of the central antenna instead of an individual antenna does not unreasonably delay the viewer's ability to receive video programming or fixed wireless services."  The bottom line is that in this day and age, it's extremely difficult for a central antenna to compete with the wide range of services and programming available to consumers from the vast array of other sources. However, if an association includes the costs associated with a central antenna in assessments – each resident is required to pay the full amount of the assessments regardless of whether they have installed a satellite dish or other antenna permitted under OTARD.

To learn more about OTARD, the HindmanSanchez article entitled "FCC OTARD Rule Concerning Satellite Dishes and Antennas: Questions and Answers" and the FCC's Over-the-Air Reception Devices Rule Information Sheet detail what rules associations can and cannot place on the installation of antennas.

Posted By Molly Foley-Healy In Legislative Miscellaneous 0 Comments Permalink

As a manager, member of the board of directors or architectural control committee of your community association – have you ever had a resident try to justify paving or chipping their entire yard as a xeriscape permitted by Colorado law? Have you ever heard of a “xeriscape” or whether Colorado law addresses it at all? Well pitch the tar and pick-up your gardening gloves, because this entry of HOA Legi-Slate will give you an overview of the basics of Colorado law relative to xeriscaping.

What exactly is a Xeriscape?

Before addressing how Colorado law regulates the manner in which associations are permitted to control landscaping and xeriscaping, it’s important to understand exactly what a “xeriscape” is. The Colorado Revised Statutes, at section 37-60-126(11)(b)(IV), defines “xeriscape” as “the application of the principles of landscape planning and design, soil analysis and improvement, appropriate plant selection, limitation of turf area, use of mulches, irrigation efficiency, and appropriate maintenance that results in water use efficiency and water-saving practices.” Clearly, the legal definition of xeriscape does not include the use of paving or chipping in lieu of an attractive landscape.

In Xeriscape Colorado - The Complete Guide, authors Connie Lockhart Ellefson and David Winger write that “Xeriscape is a fancy, trademarked word for purposefully creating a beautiful, restful outdoor environment without consuming thousands of gallons of expensively purified water in the process. And we’re not talking gravel and cacti here (unless you love the particular exotic Southwest look). Xeriscape can easily be beautiful, lush and adaptable to most any landscape style, just as it was always intended to be.” For a discussion of the principles of xeriscaping, designing xeriscapes, and information on grass and plant selection – we recommend that you take a look at this excellent publication.

How has the Colorado Legislature Addressed Xeriscaping in Community Associations?

Following the drought of 2002 in Colorado, the issue of water conservation took center stage. The lush yards and green ways so commonly found in community associations required huge amounts of water to keep healthy and vibrant. Not only was water rationed for the purpose of the upkeep of grasses and plantings, but the costs associated with the little water available sky rocketed for homeowners and associations. As part of a much broader water conservation and drought mitigation plan, the Colorado legislature took action to regulate the types of landscapes that may be required by community associations.

Section 37-60-126(11)(a) of the Colorado Revised Statutes provides that “Any section of a restrictive covenant that prohibits or limits xeriscape, prohibits or limits the installation or use of drought-tolerant vegetative landscapes, or requires cultivated vegetation to consist exclusively or primarily of turf grass is hereby declared contrary to public policy and, on that basis, that section of the covenant shall be unenforceable.” In the statute, a “restrictive covenant” is broadly defined as “any covenant, restriction, bylaw, executive board policy or practice, or condition applicable to real property for the purpose of controlling land use, but does not include any covenant, restriction, or condition imposed on such real property by any governmental entity.” 

In practical terms, what does this statutory provision mean? First, it means that associations cannot require residents to install landscapes made up of more than 50% turf grass.  Turf grass is defined by statute as “continuous plant coverage consisting of hybridized grasses that, when regularly mowed, form a dense growth of leaf blades and roots.” Second, associations cannot require the installation of landscapes that do not permit the use of drought-tolerant vegetation. Third, associations can regulate the use of things like concrete, asphalt, rock and artificial turf since they are not considered xeriscape materials. Fourth, associations can require residents wishing to install a xeriscape - or to change an existing landscape to a xeriscape - to follow the association’s architectural submission and approval requirements. The requirements for traditional landscapes and xeriscapes should be consistent. Finally, associations are permitted to require residents to adequately water all landscapes, including xeriscapes, unless a water restriction is in place. Upon the lifting or expiration of a water restriction, associations must provide residents with a reasonable period of time to revive turf grass. If turf is not able to be revived, associations are permitted to require residents to replace the turf grass.

When you hear the word “xeriscape” it doesn’t necessarily bring to mind beautiful and lush landscapes. This is particularly true when the concept is misinterpreted to be a “zero-scape” – a yard characterized by chipping or paving. However, if you take a look around, we bet you will see aesthetically beautiful xeriscapes that assist in the conservation of our vital resource – water. 

Posted By Molly Foley-Healy In Legislative Miscellaneous 4 Comments Permalink

As the Independence Day holiday approaches, residents of community associations are pulling out their American flags to fly.  The vast majority of associations are supportive of resident's expressing their patriotism and support for the American troops by permitting them to fly Old Glory at their residences.  As a reminder, the Colorado Common Interest Ownership Act (CCIOA),at section 38-33.3-106.5(1)(a), provides that associations may not prohibit “The display of the American flag on a unit owner’s property, in a window of the unit, or on a balcony adjoining the unit if the American flag is displayed in a manner consistent with the federal flag code. The association may adopt reasonable rules regarding the placement and manner of display of the American flag. The association rules may regulate the location and size of flags and flagpoles, but shall not prohibit the installation of a flag or flagpole.

Associations should also be aware that CCIOA, at section 38-33.3-106.5(1)(b), provides that associations may not prohibit “The display of a service flag bearing a star denoting the service of the owner or occupant of the unit, or of a member of the owner’s or occupant’s immediate family, in the active or reserve military service of the United States during a time of war or armed conflict, on the inside of a window or door of the unit. The association may adopt reasonable rules regarding the size and manner of display of service flags; except that the maximum dimensions allowed shall not be less than nine inches by sixteen inches.” 

To read more about flying flags in community associations, keep an eye out for the July edition of Community E-ssentials.

Posted By Molly Foley-Healy In Legislative Miscellaneous 0 Comments Permalink

Last year’s comprehensive foreclosure reform bill, discussed here and taking effect on July 1, 2007, modernized and simplified Colorado’s foreclosure process. Unfortunately, though the law retained homeowner association’s redemption rights, it failed to provide for HOAs to receive notice of these redemption rights unless the HOA has a recorded lien.

CCIOA gives HOAs a continuing revolving statutory lien on recording of the declaration. CCIOA specifically states that this lien does not require any further recordation for perfection. Despite this, the foreclosure statute will require notice of redemption to be given ONLY if the HOA has recorded a lien or other document after the lender’s deed of trust. Since many HOAs do not – as CCIOA allows – record notice of their lien, they are in danger of losing their redemption rights due to lack of notice.

Not receiving notice of their redemption rights will detrimentally affect HOAs:

• HOAs, unaware that the property has been foreclosed, will not have the opportunity to exercise their redemption right, losing money for the HOA and its members.
• At the end of a bank’s first lien foreclosure, “any interest” the HOA has in delinquent assessments will be extinguished, which will result in increasing the obligations of the remaining owners.
• Management costs and attorney fees for HOAs will increase due to the need of HOAs to record additional notices of assessment liens.
• Recording assessment liens will increase the amounts that delinquent owners owe the HOA, making it more difficult for an owner to come current.

This problem has been addressed by adding an amendment to SB 06-85, Concerning Additional Consumer Protections Relation to Real Estate Transactions, which ensures that the HOA receives notice of their right to redeem.

Please help to insure that this amendment remains in the bill. The House Business Affairs and Labor Committee passed SB 85 with this amendment to the House Appropriations Committee this afternoon unanimously. (The members of the House Appropriations Committee are as follows: Reps. Buescher, Chair,